LHMU v Achieve Cleaning Services Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LHMU v ACHIEVE CLEANING SERVICES PTY LTD [2010] FMCA 362

INDUSTRIAL LAW – Wilful breach of Workplace Relations Act – appointment of bargaining agent pursuant to s335 WRA – penalty – matters relevant to quantum of penalty.

Workplace Relations Act1996 (Cth)

Amos v Brisbane City Council [2005] QCA 443
Barnard John Cooper v Director Liquor Licensing [1999] WASCA 1021
Beckwith v R (1976) 135 CLR 569
CF Finance Sector Union v Commonwealth of Australia (2005) 47 IR 462 Chew v R (1992) 173 CLR 626
Dickinson v Fletcher (1873) LR 9 CP 1
Krakouer v R (1998) 194 CLR 202
Murphy v Farmer (1988) 165 CLR 19
National Tertiary Education Industry Union v Central Queensland University [2008] FCA 481
R v Adams (1935) 53 CLR 563 at 567 – 568
R v Crabbe (1985) 156 CLR 464
Re HPC Productions Ltd [1962] 1 CH 466
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129
Rojos v Esselte Australia Pty Ltd (No.2) [2008] FCA 1585
Tabe v R (2005) 79 ALJR 1890
Trade Practices Commission v TNT Management Pty Ltd (1985) 6 FCR 1

Applicant: LIQUOR HOSPITALITY & MISCELLANEOUS UNION

Respondent: ACHIEVE CLEANIING SERVICES PTY LTD

File Number: BRG 168 of 2009

Judgment of: Burnett FM

Hearing date: 12 June 2009

Date of Last Submission: 24 June 2009

Delivered at: Brisbane

Delivered on: 26 May 2010

REPRESENTATION

Counsel for the Applicant: Mr Reed

Solicitors for the Applicant: Liquor Hospitality and Miscellaneous Union

Counsel for the Respondent: Mr Coveney

Solicitors for the Respondent: HWL Ebsworth

ORDERS

1. That pursuant to section 407(1) and section 407(2)(b) of the Workplace Relations Act the respondent pay a pecuniary penalty fixed in the sum of $11,000.00 for contravention of section 335(3) of the Workplace Relations Act.

2. That pursuant to section 841 of the Workplace Relations Act the penalty imposed on the respondent pursuant to Order 1 herein be paid to the applicant.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 168 of 2009

LIQUOR HOSPITALITY & MISCELLANEOUS UNION

Applicant

And

ACHIEVE CLEANING SERVICES PTY LTD

Respondent

REASONS FOR JUDGMENT

Introduction

1. In late 2008 Achieve Cleaning Services Pty Ltd (Achieve) was proposing a new Employee Collective Agreement (ECA) for its employees many of whom were employed at the Anglo Coal Mine at Moura, Central Queensland.  One of Achieve’s employees was Peter Sawyer.  He had commenced employment with Achieve in about July or August 2008 and was employed as a cleaner on a casual basis.  On 14 November 2008 he joined the applicant, Liquor Hospitality & Miscellaneous Union (LHMU) and from around that time acted as the LHMU delegate at the mine.

2. In early 2008 Mr Sawyer became aware that Achieve was proposing a new ECA.  On 9 December he contacted Ben Jones (Jones), an LHMU official, and requested of Jones that the LHMU act as Mr Sawyer’s bargaining agent in relation to the proposed ECA.  Jones acknowledged and accepted that request. 

3. On 10 December 2008 Jones caused a letter…